Mayoral candidate seeks more transparency from City Council

Published: Friday, September 20, 2013 at 4:30 a.m.

Last Modified: Thursday, September 19, 2013 at 11:53 p.m.

A candidate gunning for the mayor’s seat fired off an email to Hendersonville city staff and council members Monday, threatening a lawsuit for a violation he saw in the state’s Sunshine Laws.

Steve Franks, a retired district court judge, said the incident occurred when the board kept the public in the dark about a closed meeting Sept. 5 that led to the spending of taxpayer money. On Thursday evening, he said the situation seemed to be resolved after hearing from the city’s attorney and receiving minutes from both of the closed and open sessions of Sept. 5.

City Attorney Sam Fritschner says the law was followed to the letter. After the board returned to open session, council members voted to transfer $249,082 in utility reserve funds to cover part of a loan used to extend waterlines to the Brightwater subdivision. Brightwater residents have threatened to file a lawsuit for having to pay extra monthly fees for the utility after the city received a grant for the project, which wasn’t used in its entirety.

Franks charged the council with “subterfuge to the public” and threatened legal action after the board went into a closed session Sept. 5 “to consult with the city’s attorney” about their plans to resolve the issue.

“The public in attendance, including the press, was led to believe that nothing else would be done that night other than to adjourn the meeting after the closed session. Then, after everyone left, the council came back into session and passed the motion transferring the funds,” Franks said in a news release from his campaign office Thursday.

“If any discussion occurred as to the reason for the transfer of nearly $250,000 to Brightwater subdivision, it was to an empty chamber because the public and press had left.”

Councilman Ron Stephens, who has served on the board for six years and also is vying for the mayor’s chair, said the council’s actions were nothing out of the ordinary.

“We follow our city attorney’s advice,” he said. “We announced that we were going into a closed-door session to discuss with our attorney for legal advice.”

When they returned from closed session, he said, “we did what we always do.” A board member went into the lobby to invite the public back in the chamber, but no one had waited.

“Sometimes people stay, and sometimes people don’t,” he said, adding that when they returned to open session, they said what was covered and took a vote for the public record.

Franks said he was surprised to learn of the council’s post-closed session action in the following days.

“I was present at the meeting and the next-to-last item on the agenda was a closed session to consult with the city attorney,” Franks said in his release. “The motion to close the session was a catch-all phrase: ‘to preserve the attorney-client privilege and/or to consider and give instructions concerning a potential or actual claim, administrative procedure or judicial action.’ That phrase flies in the face of the state statute that requires specific reasons, including (naming the) parties to any potential or actual litigation, to justify a closed session. That was not done.”

According to the statute, public bodies wanting to meet with an attorney regarding possible legal actions are to “identify the parties in each existing lawsuit concerning which the public body expects to receive advice during the closed session” (N.C.G.S. 143-318.11c).

City Attorney Sam Fritschner said the key words in that provision in this case are “existing lawsuit.”

“We don’t have an existing lawsuit” in this case, he said. “We have a potential lawsuit ... (but) we don’t have any way of knowing who the parties would be.”

Franks said the law was established to assure and protect the public’s right to know what their leaders do with their money.

“The legislature wants the public to know what they’re basing their decision on,” he said. The law was provided “for a reason. It’s to give the public notice.”

After the minutes were released Thursday, Franks said, “The public has won on this issue since they will now know what took place in the closed session. The subject should be revisited, however, at the next council meeting, when the public should be allowed to comment and ask questions.”

<p>A candidate gunning for the mayor's seat fired off an email to Hendersonville city staff and council members Monday, threatening a lawsuit for a violation he saw in the state's Sunshine Laws.</p><p>Steve Franks, a retired district court judge, said the incident occurred when the board kept the public in the dark about a closed meeting Sept. 5 that led to the spending of taxpayer money. On Thursday evening, he said the situation seemed to be resolved after hearing from the city's attorney and receiving minutes from both of the closed and open sessions of Sept. 5.</p><p>City Attorney Sam Fritschner says the law was followed to the letter. After the board returned to open session, council members voted to transfer $249,082 in utility reserve funds to cover part of a loan used to extend waterlines to the Brightwater subdivision. Brightwater residents have threatened to file a lawsuit for having to pay extra monthly fees for the utility after the city received a grant for the project, which wasn't used in its entirety.</p><p>Franks charged the council with “subterfuge to the public” and threatened legal action after the board went into a closed session Sept. 5 “to consult with the city's attorney” about their plans to resolve the issue.</p><p>“The public in attendance, including the press, was led to believe that nothing else would be done that night other than to adjourn the meeting after the closed session. Then, after everyone left, the council came back into session and passed the motion transferring the funds,” Franks said in a news release from his campaign office Thursday.</p><p>“If any discussion occurred as to the reason for the transfer of nearly $250,000 to Brightwater subdivision, it was to an empty chamber because the public and press had left.”</p><p>Councilman Ron Stephens, who has served on the board for six years and also is vying for the mayor's chair, said the council's actions were nothing out of the ordinary.</p><p>“We follow our city attorney's advice,” he said. “We announced that we were going into a closed-door session to discuss with our attorney for legal advice.”</p><p>When they returned from closed session, he said, “we did what we always do.” A board member went into the lobby to invite the public back in the chamber, but no one had waited.</p><p>“Sometimes people stay, and sometimes people don't,” he said, adding that when they returned to open session, they said what was covered and took a vote for the public record.</p><p>Franks said he was surprised to learn of the council's post-closed session action in the following days.</p><p>“I was present at the meeting and the next-to-last item on the agenda was a closed session to consult with the city attorney,” Franks said in his release. “The motion to close the session was a catch-all phrase: 'to preserve the attorney-client privilege and/or to consider and give instructions concerning a potential or actual claim, administrative procedure or judicial action.' That phrase flies in the face of the state statute that requires specific reasons, including (naming the) parties to any potential or actual litigation, to justify a closed session. That was not done.”</p><p>According to the statute, public bodies wanting to meet with an attorney regarding possible legal actions are to “identify the parties in each existing lawsuit concerning which the public body expects to receive advice during the closed session” (N.C.G.S. 143-318.11c).</p><p>City Attorney Sam Fritschner said the key words in that provision in this case are “existing lawsuit.”</p><p>“We don't have an existing lawsuit” in this case, he said. “We have a potential lawsuit ... (but) we don't have any way of knowing who the parties would be.”</p><p>Franks said the law was established to assure and protect the public's right to know what their leaders do with their money.</p><p>“The legislature wants the public to know what they're basing their decision on,” he said. The law was provided “for a reason. It's to give the public notice.”</p><p>After the minutes were released Thursday, Franks said, “The public has won on this issue since they will now know what took place in the closed session. The subject should be revisited, however, at the next council meeting, when the public should be allowed to comment and ask questions.”</p>